Judge may allow suppressed statements in Google trade secrets trial to address defense ‘misimpression’

SAN FRANCISCO (CN) — Previously suppressed statements made by a former Google software engineer facing federal trade secret theft and economic espionage charges may have a chance of being incorporated into trial, a federal judge said Wednesday.

Linwei Ding, also known as Leon Ding, is accused of stealing trade secrets from Google, which hired him in 2019 as a software engineer to help develop its supercomputing data centers.

On Jan. 6, 2024, the FBI executed a search warrant on Ding’s Bay Area home, using a battering ram to open the door. Officers placed Ding in a car, removed his handcuffs and told him he wasn’t under arrest. He remained in the vehicle for over three hours.

Ding was arrested in March 2024 and charged with four counts of theft of trade secrets. Prosecutors filed additional charges in February, totaling seven counts of theft of trade secrets and seven counts of economic espionage.

In June, U.S. District Judge Vince Chhabria, a Barack Obama appointee, granted Ding’s motion to suppress his statements given to authorities during the January 2024 search, ruling that the officers who questioned Ding violated his Miranda rights. However, the judge also determined Ding willingly gave passwords to officers and that evidence gained from his electronic devices can reach a jury.

During the third day of Ding’s three-week jury trial, Assistant U.S. Attorney Casey Boome argued the defense had created a “misimpression” that Ding was never given the chance to explain his actions to Google or the authorities.

Boone specifically referred to a statement made during the defense’s opening argument that the case against Ding is the result of “what happens when two powerful entities target a single individual.” He also brought up extended questioning by the defense over whether Ding had an exit interview after he was fired from Google.

Chhabria seemed open to the idea of including or referencing previously suppressed statements, saying the defense was giving the jury the impression that “Google and the government did this together and didn’t give Mr. Ding the chance to explain himself.”

He added that the defense’s opening statement, along with the time spent examining the government’s witness about exit interviews, was a “serious concern” and is “opening the door” to topics relating to the government questioning Ding.

However, the judge hesitated on how to rectify the situation, suggesting options such as allowing references to Ding’s statements or limited testimony to “cure the misimpression.”

“The only reason it legitimately raises flags is it harkens back to the theme the defense had in open statements,” Chhabria said. “Makes it tricky sitting here right now. I’m not sure if anything should be done about it, or if we wait to see if the defense does anything else to raise this theme of Google and the government conspiring to persecute and the government not giving him the opportunity to defend himself.”

Attorneys for the parties declined to comment.

The federal government claims Ding started to transfer files in May 2022, copying information from internal Google documents to the notes application on his company-issued laptop, converting the notes to PDFs and uploading them to a personal cloud account.

In total, they say Ding transferred 1,255 documents, comprising an estimated 14,000 pages, between May 2022 and May 2023. The case focuses on 105 documents that the government says contain Google trade secrets about their supercomputing data centers.

The government also claims Ding worked for two China-based technology companies during his tenure at Google, taking on the role of chief technology officer for the Beijing-based company, Rongshu, in November 2022, and founding his own technology company, Zhisuan Technology, the following spring.

In opening arguments, Boome told the jury that Ding told Chinese investors he was a former Google employee who led the team that built supercomputers, and he could replicate what Google was doing in China.

“It’s not a crime to leave a big company like Google and start a business, and it’s not a crime to leave a company and start your own business in China,” he said. “What you can’t do is take proprietary technology that doesn’t belong to you, that you didn’t create, build a business and then offer to help a foreign government build the very same technology you stole.”

In contrast, Lora Krsulich of Goodwin, an attorney for the defense, framed the documents at issue as notes Ding took during his tenure at Google and that the company “made an assumption” the notes contained trade secrets after they learned he started a business in China.

She additionally disputed the government’s claim that Ding was attempting to copy parts of Google’s supercomputing capabilities in China, saying Zhisuan “was not a functioning company.”

“As the government tells it, Linwei was building Google 2.0 in China. The evidence shows Linwei was far from it,” she said, adding, “Zhisuan was nowhere close to replicating the Google system.”

If convicted, Ding faces a maximum of 10 years in prison and up to $250,000 in fines for each trade secret count, in addition to 15 years in prison and a $5 million fine for each economic espionage count, according to the Department of Justice.

The trial is scheduled to continue through Jan. 30.

Follow @mhattridge_